What on Earth is an emolument?

Hey, ‘member this li’l guy?

Two and a half years into law school, I am still woefully ignorant of the U.S. Constitution. For example, I only recently found out about the Emoluments Clause. Article I, Section 9, Clause 8 of the Constitution says, “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” (In case you’re wondering, an emolument is generally defined as compensation for services or from employment or an office). Basically, the Clause is meant to prevent political office-holders from accepting gifts so that they aren’t improperly influenced by outside entities.

You’re welcome to use this newfound information to try to impress people at parties (good luck), but I am bringing it up for another reason. And that reason is Donald Trump. As usual, I’m not really interested in getting political, but the application of this Clause raises some interesting questions for our president-elect given his extensive, international business holdings.

Some will likely argue that the Clause applies to Trump’s business holdings, and he is in violation by not selling off his holdings. This argument turns on the fact that Trump will benefit personally from decisions made by foreign governments. Others will argue that the Clause does not apply. Likely, the latter will point to the fact that George Washington received gifts from foreign officials without Congressional sanction. If George Washington did it, then it is obviously as American as apple pie. They will also argue that the presidency does not fall under the Clause’s purview because it is an elected position not an office that is created or regulated by federal statute.

Trump has made clear that he isn’t going to get rid of his business holdings. He has said that he’ll be turning over control to his sons, and he will not be involved in their decision-making or in foreign deals. There is clearly an argument that his decision creates a conflict of interest and potentially violates the Constitution. But it is extremely unlikely that this will ever get litigated, so we probably won’t have any judicial clarification of the matter.

As with most things we’ve seen from the new administration, the decision to maintain a sprawling business empire is unorthodox (or maybe even worse). Nevertheless, it is going to happen and there’s probably nothing anyone can do about it.